Below is my column in the Washington Post (Sunday) on our recent victory in the Sister Wives case. The column looks at the most significant aspect of the case — the rejection of morality codes that once controlled across the country in prohibiting everything from homosexuality to adultery to fornication. These morality laws were upheld in the decision in Reynolds in 1876 in a polygamy case out of Utah. The Brown decision returned us to the same question involving the same issue in the same state. Some 136 years later however the answer from this federal court was very different. We are a different country today and, despite what one hears from politicians like Rick Santorum, I believe that we are a better country today.
There does seem to be confusion about the ruling with some saying that polygamy is still not legal after the opinion. That is simply wrong. Polygamy is not the same a bigamy. One is the crime defined under cohabitation statutes of living as a plural family or with a person married to another person. The other is the crime of having two or more marriage licenses. The latter has nothing to do with the structure of your family and has almost exclusively involved people who hold themselves out (falsely) as monogamous. We always argued that the state could prosecute people who obtained more than one marriage license. Bigamy has not been an offense committed by polygamists who traditionally have one official marriage license and multiple spiritual licenses. Indeed, the law targeted polygamy with the cohabitation provision precisely because there is a difference between the two. The state fought for years to preserve this law because it reached beyond simple bigamy. Before this opinion, it was a crime for polygamists to live, as do the Browns, in a plural family. After the opinion, it is legal. This is precisely what occurred in Lawrence v. Texas where homosexual unions were a crime but then became legal when the Texas law was struck down. This decision legalizes tens of thousands of polygamous families who will no longer been viewed as criminal enterprises. They will be allowed to be open plural families. They are now legal relationships. Legality of polygamy is entirely different from recognition of plural marriages just as the legality of homosexual relations is different from the recognition of same-sex marriage.
There is also a lack of knowledge about the existence of such laws outside of Utah. This law does exist outside of Utah. Indeed, the very same language is found in the Canadian cohabitation law. I was called as a legal expert in the recent challenge to that law. However, the Canadian Supreme Court in British Columbia upheld the law. Putting these distinctions aside, the thrust of this article is how this decision is part of a larger trend toward the repeal or the striking down of morality codes, including the rejection of a cohabitation law in Virginia this year.
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The decision this month by a federal court striking down the criminalization of polygamy in Utah was met with a mix of rejoicing and rage. What was an emancipating decision for thousands of plural families was denounced as the final descent into a moral abyss by others.
Former senator Rick Santorum was among the social conservatives trying to claim the moral high ground. He tweeted on Sunday: “Some times I hate it when what I predict comes true” — referring to his 2003 claim that legalizing “consensual sex within your home” would lead to the legalization of polygamy and “undermine the fabric of our society.” (On Wednesday, with no apparent sense of self-contradiction, he expressed outrage over the removal of a Nativity scene at a South Carolina military base, tweeting: “Our Constitution protects free exercise of religion. No govt entity/official has the right to limit that.”)It’s true that the Utah ruling is one of the latest examples of a national trend away from laws that impose a moral code. There is a difference, however, between the demise of morality laws and the demise of morality. This distinction appears to escape social conservatives nostalgic for a time when the government dictated whom you could live with or sleep with. But the rejection of moral codes is no more a rejection of morality than the rejection of speech codes is a rejection of free speech. Our morality laws are falling, and we are a better nation for it.
In the Utah case, I was the lead counsel for the Browns, the polygamous family featured in the TLC reality program “Sister Wives.” They are members of the Apostolic United Brethren Church, and they have one marriage license and three “spiritual” marriages among them. After the first episode of “Sister Wives” aired, state prosecutors threatened to bring charges under a Utah law that made it a crime when a married person “purports to marry another person or cohabits with another person.” The Browns were under investigation for two years and were publicly called felons before they took prosecutors to court in a challenge to the constitutionality of the law.
The case was never about the recognition of multiple marriages or the acceptance of the religious values underlying this plural family. It was about the right of consenting adults to make decisions for themselves and their families. Judge Clark Waddoups, a conservative George W. Bush appointee,ruled that the criminalization of cohabitation clearly violated the due process clause and the free exercise clause of the United States Constitution.
In doing so, he departed from the prevailing precedent: the Supreme Court’s opinion inReynolds v. United States , which upheld a ban on polygamy in 1879. Waddoups wrote that courts today are “less inclined to allow majoritarian coercion of unpopular or disliked minority groups, especially when blatant racism . . . religious prejudice, or some other constitutionally suspect motivation, can be discovered behind such legislation.”
Indeed, in Reynolds, religious and racial prejudice were vividly on display. The court unleashed a tirade of indignation and condemnation, stating, “Polygamy has always been odious among the northern and western nations of Europe, and, until the establishment of the Mormon Church, was almost exclusively a feature of the life of Asiatic and of African people.” Just a few years later, the Supreme Court also upheld the criminalization of mixed-race relations in Pace v. Alabama .
The idea that polygamy was a “barbarous practice” and contrary to democratic principles drove the demand in the late 1880s and ’90s that Utah outlaw it as a condition of statehood. And in Mormon Church v. United States (1890), the Supreme Court labeled polygamy as “abhorrent to the sentiments and feelings of the civilized world.”
The stigma attached to polygamy continued to distort legal analysis into this century. As recently as 2006, Utah Justice Ronald Nehring began his opinion in a ruling upholding the criminalization of polygamy by lamenting, “No matter how widely known the natural wonders of Utah may become, no matter the extent that our citizens earn acclaim for their achievements, in the public mind Utah will forever be shackled to the practice of polygamy.” Nehring frankly admitted that this hostility “has been present in my consciousness, and I suspect has been a brooding presence . . . in the minds of my colleagues, from the moment we opened the parties’ briefs.” Rather than overcome that prejudice, Nehring not only yielded to it but warned any Utah judge of the peril of being the first to recognize the rights of polygamists: “I have not been alone in speculating what the consequences might be were the highest court in the State of Utah the first in the nation to proclaim that polygamy enjoys constitutional protection.”
Well, it wasn’t. A federal judge in Utah assumed that burden. Gov. Gary Herbert objected to the court making “decisions on social issues.” (He has not yet announced an appeal.) Waddoups, however, was not dictating a decision on a social issue but rather saying that governments could not impose a single version of morality. He limited prosecution under Utah’s anti-polygamy law to cases of bigamy, where someone acquires more than one marriage license — which is an offense more common to monogamous couples, who care about state recognition, than polygamists, who care about spiritual recognition.
Across the country, the era of morality codes is coming to an inglorious end. This year, the Supreme Court struck down part of the Defense of Marriage Act barring the federal recognition of same-sex marriage. And this week, the New Mexico Supreme Court and another federal judge in Utah struck down the ban on same-sex marriage in those states — bringing the number to 18 states (plus the District of Columbia) where same-sex couples can marry. Meanwhile, Virginia recently repealed its 1877 cohabitation law and Colorado replealed a criminal adultery law from the 1850s — both relics of a time when states used their criminal codes to force citizens to comply with the religious values of their neighbors.
Most states have wisely turned away from absurd laws criminalizing masturbation and fornication. Obscenity laws have also been curtailed by the Supreme Court in deference to the First Amendment.
Still rightly on the books are laws against bestiality, which involves an obvious lack of consent as well as manifest harm. Likewise, incest bans are based on claims of medical, not moral, harm.
Once any crimes or abuses are stripped away in cases like the Browns’, what remains is religious animus. Yet, polygamy is widely practiced around the world by millions of families and was condoned by every major religion — from Judaism to Christianity to Islam — at one time. While plural families are called polygamists in our popular lexicon, “polygamy” actually refers to a broad array of plural relationships, from polygyny (one husband and multiple wives, like the Browns) to polyandry (a single wife and multiple husbands) to polyamory (couples who reject the exclusivity of sexual relations). The vast majority of these families are based on consenting relations among adults without abusive or criminal histories.
Critics often ignore these other plural relationships (and even polygynists like the Browns) in favor of a stereotype of “compound polygamists,” living in remote walled communities where women appear captive and molestation flourishes. It is Warren Jeffs, not Kody Brown, whom critics want to invoke in debating decriminalization — a sinister figure in a secluded compound where women wear prairie outfits and hairdos from the 19th century.
Obviously, there will always be abusers like Jeffs among polygamists — just as there are abusers among monogamists. However, it is no more persuasive to criminalize all plural relationships because of a small number of abusive individuals than it would be logical to outlaw monogamy based on the convicted spouse- and child-abusers in conventional marriages.
One of the great ironies about the focus on compound polygamists is the circular logic of criminalization. The government first declared polygamists felons and then pointed to their hiding as evidence of their guilt. But decriminalization will allow these families to be plural, open and law-abiding as they reintegrate into society.
In truth, 19th-century Americans were no more moral than we are today. It simply appeared that way with the imposition of official morals, including (as Santorum recalls so fondly) being told whom we could love in our own homes. It is not a single moral voice that is heard today but a chorus of voices. Each speaks to its own values but joins around a common article of faith: the belief that morality is better left to parents than to politicians.
Jonathan Turley is the Shapiro professor of public interest law at George Washington University and lead counsel in the “Sister Wives” polygamy case.
Washington Post (Sunday) December 22, 2013
Gene has deleted some of my comments, that’s not in dispute.
Elaine, My poking @ you is MUCH[emphasis, not yelling] different than my poking a few others. I’m not saying I don’t poke you harder @ times, but this was not to agitate, just to tweak a bit. Happy New Year to you. Many of my family are Patriot fans. My son is flying out there to visit family in Boston next weekend[cousin @ Emerson], Malden and Stoneham. My niece sent me a video of Ron Burgundy @ Emerson a few weeks ago. It’s on YouTube and short, but funny.
Bron,
Right! Bankers never do anything wrong. All business people are ethical, benevolent capitalists. There is no greed on Wall Street.
Ah … so now davidm and nick have suggested that GBers or a GBer are deleting specific posts in order to thwart justice. That’s a serious charge that strikes at the integrity of the blog.
DavidM, I would bookmark the comment where Gene disparages your use of your name and initial, before it gets deleted. That was a violation of blog policy as it was screamed @ me for doing even less.
AY:
you might be right. Maybe I am confusing Nick and DavidM but I thought there were some who had called for it.
nick,
Trying to poke at me and get me agitated? Nice try.
Happy New Year to you! I am happily looking forward today to eating my husband’s delicious homemade pizza and watching the Patriots game with friends. Have a lovely Sunday!
AY, You taught me yesterday that responding to you, even w/ unabashed kindness, is fraught w/ danger. So, this will be my last response to you. I sincerely hope and pray you have a good life. You deserve it.
“Keeping it secret” isn’t the issue, David.
Usurping my choice (and violating blog policy) is the issue. You get to control how much information about yourself you choose to share here. What makes you think you get to choose how much information about myself that I share?
By all means, if you want to use the Wayback Machine to find your evidence?
Be my guest. Here. I’ll get you started: https://archive.org/web/web.php
What you seek doesn’t exist because it never existed.
That or I secretly control the Internet.
OOooooo. Spooky.
Elaine:
Considering government policies have caused this depression and the big one in the 30’s, I guess it is only fair that other tax payers cover the costs of collectivist thinking politician’s mistakes.
Sure, I know people that have had that happen as well. But they arent the majority of people who are on some sort of government gimme. The majority of people having their living paid for by others is the result of choices they have made.
I am all for helping the mother of 2 whose husband died and she is working 2 jobs to raise her children. Or the young man who breaks his neck and has no family to care for him, sure. Or the man born with severe CP and his parents are dead and can no longer look after him, you betcha.
Dave Ramsey says you should have 6-12 months of savings in the bank before you do anything else.
My daughter went to another state to look for work, she found a job in 3-4 weeks. Not a bad job either with a good company. She didnt have much trouble finding one either. If I had told her I would support her until she found one, she would still be looking for that perfect job.
Bron,
Unless you can point to someone asking that he, David being banned I am in agreement with Elaine…
and Elaine LOVES to give homework assignments, just a carryover from a long career of doing such.
“and Elaine LOVES to give homework assignments, just a carryover from a long career of doing such.”
Elaine was a successful teacher.
davidm,
And I suppose we nefarious guest bloggers also removed all the comments made by people who called for you to be banned…so it would be fruitless to look for them too.
Elaine & David,
Is this personal information in question available anywhere without having to gain permission to acquire it?
For instance, A Private Investigator must have a legitimate reason, as specified under the laws of each State, to do the various investigative searches on an individual. Any information available through publically accessed sources, without required permission or authorization, should not be considered private information.
But fascist abound on this site, as Jonathan must be surely aware of and they like to hide their identities.
What is the sites policy?
DavidM, He’s a compulsive delete machine. He’s been warned about that.
Now, now now, A few months ago I merely mentioned someone chose to use initials as their moniker and the cabal came down on me like vultures on a dead wolf. I was, of course, threatened w/ banishment from The Kingdom[also the name of Saudi Arabia] by 2 or 3 members of the Middle to Upper Middle Class, White, almost all male, GBer’s. “You hide behind your anonymity like a shield” the Gene Howington just said of DavidM. I didn’t even say that. I merely pointed out the person used initials! This has gone WAY[emphasis, not yelling] past that, disparaging someone for using their name and last initial as “a shield.” Oh, there’s the law degree[but not a lawyer] weasel caveat after it, but what a freakin’ hypocrite. And what a blatant double standard.
Some folks are too narcissistic to come out of themselves. I have a friend who simply has no social skills. He was raised w/ 3 brothers, no sisters. He never married. So, he only had a mother to teach him social skills and I guess she failed. His 3 other brothers are married and have been civilized. Combine lack of social skills, narcissism, and one other variable this afternoon, and I have some sage advice. Starting @ 3:30p CT there is an NFL games between the Packers and Bears. This is the oldest rivalry in professional football. The winner goes on to the playoffs, the loser sets a tee time down on some fancy golf course in Florida. Unless there is a Felony threat made by someone here; from 3:30-7:00p, I would strongly urge not contacting Mr. Turley. You see, it’s still Christmas vacation and Mr. Turley is a HUGE Bear’s fan. We are all flawed. Now, if it’s not a Felony threat, just a misdemeanor[“I’m going to poop on your front stoop”], or for chrissake a blog rule violation, then I would hold off on contacting Mr. Turley. If the Bears win[it could happen], then maybe let him bask in the glory until ~8p. If they lose, I would suggest holding off until Monday. Actually, if you can keep that single bullet in your front pocket, January 2nd or even better 3rd, would be a good time to contact Mr. Turley. Now, you folks have known Mr. Turley longer than I. But, I think I’m right on this.
Bron,
Since you know so many fortunate people, we should go to Vegas sometime. Or maybe I’ll get you to buy me lottery tickets.
Bron,
You must lead a sheltered life. I have known people in my life who have lost jobs because their companies were downsized, sold, went out of business, moved their operations overseas. I know of one family who owned a successful local bakery that went out of business after the wife got cancer. The family had to spend thousands of dollars on her treatments that weren’t all covered by insurance. I have a friend who recently lost a job at a jewelry store where she had worked for more than four decades because the two owners decided to close shop. I know there are people who may abuse the system–but many do not. I have empathy for those who fall on hard times–as my grandparents did during the depression. My maternal grandfather worked for the WPA. He was able to work for the government, support his family, hold his head up high. He was not a moocher.
Bron,
Even IF there is fault there, they and their children are fellow human beings. When our society no longer understands that we are stronger when we help each other, then there is something seriously wrong with it.
davidm,
You made a couple of claims–which you choose not to back up with proof. So it goes…….
Elaine M wrote: “You made a couple of claims–which you choose not to back up with proof.”
That’s your perspective. My perspective is that I was falsely accused of researching someone and disclosing personal private information about him. Rather than defend myself, I simply stated the truth, that Gene himself made this information publicly available. Then I was called a liar. Again, I stated for a matter of record that I am not lying. Now you make the claim that I must prove I am not lying or suffer the judgment of being a liar. You people deal in so much dishonesty, I’ve about had it. With my friends, a person’s word can be counted upon. That is clearly not the case here. I choose to leave you to your own delusions. I really don’t care what you duplicitous people think about me.
Elaine, it has occurred to me that Gene has probably already removed all public references to the information that he apparently is trying to keep secret. I have never known anyone who wants to keep their Alma Matter secret, but based upon his very strong denials now about making such information public, I highly suspect he has removed the evidence. Therefore, it is a waste of time to search for something that no longer exists. I guess I could use the Wayback machine, but what’s the point? If he doesn’t want the information shared, I would be just violating the rules again if I successfully found it and posted the link to it. Would it not be more prudent for me to respect his privacy and let it be?
Elaine:
I have rarely seen a person come upon hard times through no fault of their own. It is typically because they choose to be irresponsible. They have too many children, they dont get proper training, they drink or use drugs, they refuse to save [although with the tax system it is hard to do that], they take uninformed financial and life decisions which are contraindicated at the time, they refuse to spend money on insurance, they choose to work a minimal amount and a host of other things which people engage in which leads to financial difficulty.
They are further emboldened to do these things because they know there is a safety net they can rely on.